Petition for Writ of Certiorari — Dessie Andrews, Petitioner v. Alma Adams, et al.

APPENDIX

Appendix A-l: Opinion of the United States Court of Appeals for the Fifth Circuit, date.

Appendix A-2: Opinion of the United States District Court at Austin.

6

APPENDIX

/

APPENDIX A-l

United States Court of Appeals

for the Fifth Circuit

Opinion

Case: 23-50841

Document: 40-1

Page: 1

Date Filed: 09/26/2024

fHutteb States Court of Appeals

for tfjr Jftftf) Circuit

United States Court of Appeals

Fifth Circuit

No. 23-50841

Summary Calendar

FILED

September 26, 2024

Lyle W. Cayce

Clerk

Dessie Andrews,

Plaintiff—Appellant,

versus

Alma S. Adams, in theirpersonal and official capacity, Current and

Former Members of Congress, in theirpersonal and official

capacity, Robert B. Aderholt, in theirpersonal and official capacity,

Pete Aguilar, in theirpersonal and official capacity, Rick W. Allen,

in theirpersonal and official capacity; Et AL.,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. l:23-CV-95

Before Wiener, Stewart, and Douglas, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Dessie Andrews appeals the district court’s

dismissal of her claims against more than five hundred current and former

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50841

Document: 40-1

Page: 2

Date Filed: 09/26/2024

No. 23-50841

members of Congress (collectively, “Appellees”) for lack of subject-matter

jurisdiction. Concluding that the district court correctly applied wellestablished law in dismissing Andrews’s complaint, we AFFIRM.

Andrews initiated this action against Appellees, seeking monetary and

injunctive relief, for numerous acts of Congress from the American Civil War

to the present. More specifically, Andrews challenges as unconstitutional

Congress’s decision to (1) abandon the gold standard, (2) permit the country

to accumulate debt and pass “omnibus spending bills,” and (3) take actions

pursuant to the “War Powers.”1 These actions, says Andrews, violated the

Congressmembers’ oaths of office, her constitutional rights, and the consti­

tutional rights of the public generally. Appellees filed a motion to dismiss for

lack of subject matter jurisdiction and failure to state a claim, contending that

Andrews lacked standing and sovereign and legislative immunity barred her

claims. Andrews objected on various grounds, including that dismissal would

violate her due process rights. The district court overruled her objections and

adopted the Magistrate Judge’s report and recommendation. The district

court concluded that Andrews had not established a concrete and particular­

ized injury-in-fact sufficient to establish standing. It also determined that the

United States had not waived sovereign immunity and that the Speech or De­

bate Clause barred her claims against members of Congress.

“We review de novo the district court’s grant of a Rule 12(b)(1) motion

to dismiss for lack of subject-matter jurisdiction.” Morris v. Thompson, 852

F.3d 416, 419 (5th Cir. 2017). The party asserting jurisdiction “constantly

bears the burden of proof that jurisdiction does in fact exist. ” Ramming v.

United States, 281 F.3d 158,161 (5th Cir. 2001). “In reviewing a Rule 12(b)(1)

1 Andrews characterized these claims as promissory estoppel claims (with respect

to the gold standard and debt accumulation) and conspiracy claims (with respect to the gold

standard and the War Powers).

2

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No. 23-50841

motion to dismiss where the district court relied only on the face of the

complaint, as here, ‘our review is limited to determining whether the district

court’s application of the law is correct.’” Fort Bend Cnty. v. United States

Army Corps ofEng’rs, 59 F.4th 180,188 (5th Cir. 2023) (quoting Rollerson v.

Brazos River Harbor Navigation Dist., 6 F.4th 633,639 (5th Cir. 2021)).

The district court correctly applied the law in rejecting Andrews’s

assertion of Article III standing because she failed to demonstrate that she

suffered an injury-in-fact that is “concrete and particularized” to her. See

Lujan v. Defs. of Wildlife, 504 U.S. 555,560 (1992). Andrews alleged that her

injuries “ are not merely speculative or hypothetical, but directly impact [her]

financial stability, erode [her] trust in the democratic process, restrict [her]

economic opportunities, and compromise [her] personal safety and

liberties.” However, the district court correctly concluded that such injuries

are the kind of “undifferentiated, generalized grievance about government

that is insufficient to establish standing.” It is well established that, to assert

an injury-in-fact, a plaintiff must show more than “ a general interest common

to all members of the public.” Id. at 575 (quoting Ex parte Levitt, 302 U.S.

633, 634 (1937)). The district court thus did not err in holding that Andrews

lacked Article III standing because she was “no more directly impacted by

her allegations of official misconduct than any other citizen of the United

States.”

We also agree that Andrews failed to overcome Appellees’ affirmative

defenses of sovereign and legislative immunity. The United States “may not

be sued without its consent and [] the existence of consent is a prerequisite

for jurisdiction.” United States v. Mitchell, 463 U.S. 206,212 (1983). Andrews

“bears the burden of showing Congress’s unequivocal waiver” of immunity.

Franklin v. United States, 49 F.4th 429, 434 (5th Cir. 2022) (brackets

omitted). She failed to meet this burden. The district court correctly

concluded that, to the extent that they were alleged violations of her

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No. 23-50841

constitutional rights, her claims for monetary and injunctive relief are barred.

Sovereign immunity also bars Andrews’s promissory estoppel claims. See

HerculeSj Inc. v. United States, 516 U.S. 417, 423 (1996) (noting that the

United States has not waived sovereign immunity for “implied in fact”

agreements, which are the basis of claims for promissory estoppel). To the

extent that Andrews’s claims could be considered tort claims, the Federal

Tort Claims Act’s limited waiver of sovereign immunity does not save them.

See 28 U.S.C. § 1346(b)(1). Finally, with respect to her claims against

members of Congress, Andrews has not sufficiently allegedactions outside

the scope of their constitutional authority, as required to overcome'sovereign

immunity as to those claims.

Legislative immunity also bars Andrews’s claims against members of

Congress for their “legitimate legislative activity.” See Eastland v. US.

Servicemen’s Fund, 421 U.S. 491, 503 (1975). The Speech or Debate Clause

of the United States Constitution, on which that doctrine rests, immunizes

members of Congress from civil suits for damages “for any Speech or Debate

in either House.” U.S. Const., Art. I, § 6, cl. 1. Andrews’s claims are

based on legislation passed by Congress, an undeniably legislative activity,

and the district court correctly held that those Appellees are immune under

the Speech or Debate Clause.

Finally, we agree that Andrews’s due process rights were not violated

by the district court’s dismissal of her action. Nothing in the record suggests

that she did not receive notice throughout the proceedings. Indeed, she was

provided the opportunity to object to the Magistrate Judge’s report and

recommendations and, although her objections were untimely, the district

court took them into consideration.

The district court dismissed all of Andrews’s claims with prejudice.

However, dismissal was premised on jurisdictional (standing) grounds,

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No. 23-50841

which generally dictates dismissal without prejudice. See Ass’n of Am.

Physicians & Surgeons Educ. Found, v. Am. Bd. ofInternal Med., 103 F.4th 383,

396 (5th Cir. 2024) (quoting Denning v. BondPharmacy} Inc., 50 F.4th 445,

452 (5th Cir. 2022)). Finding no error in the district court’s application of

the law, we AFFIRM the grant of Appellees’ 12(b)(1) motion to dismiss for

lack of subject matter jurisdiction. However, we MODIFY it to be mthout

prejudice.

5

APPENDIX A-2

United States Court Court

for the Western District of Texas

Austin Division

Final Judgment

Case l:23-cv-00095-RP Document 20 Filed 10/20/23 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

§

DESSIE MARIA ANDREWS,

Plaintiff,

§

§

§

V.

1:23-CV~95~DII

ALMA S. ADAMS, etal.,

§

§

§

Defendants.

FINAL 1UDGMENT

On this date, the Court adopted United States Magistrate Judge Dustin M. Howell’s report

and recommendation concerning Defendants’ Motion to Dismiss, (Dkt. 10) (R&R, Dkt. 16). The

Court granted Defendants’ Motion and dismissed Plaintiffs claims with prejudice.

As nothing remains to resolve, the Court renders final judgment pursuant to Federal Rule of

Civil Procedure 58.

IT IS ORDERED that each party bears its own costs.

IT IS FURTHER ORDERED that the case is CLOSED,

SIGNED on October 20,2023.

CjSW'PV'—-—

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

Casel:23-ev-00095-RP Document 19 Filed 10/20/23 Page lot2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF 'TEXAS

AUSTIN DIVISION

DESSIB MARIA ANDREWS,

Plaintiff,

§

§

l:23-CV-95-DII

v.

ALMA S. ADAMS, et al,

s

§

Defendants.

ORDER

Before the Court is the report and recommendation of United States Magistrate Judge

Dustin M. Howell concerning Defendants3 Motion to Dismiss (Dkt. 10) (R. 8c R., Dkt. 16). Plaintiff

filed objections to the report and recommendation. (Objs., Dkt 18).

A party may serve and file specific, written objections to a magistrate judge’s findings and

recommendations within fourteen days after being served with, a copy of the report and

recommendation and, in doing so, secure de mm review by the district court. 28 U.S.C.

§ 636(b)(1)(C). Because Plaintiff objected, to the report and recommendation, the Court reviews the

report and recommendation de novo. Having done so and for the reasons given in the report and

recommendation, the Court overrules Plaintiff s objections and adopts the report and

recommendation as its own order.

Accordingly, the Court ORDERS that the report and recommendation of United States

Magistrate Judge Dustin M. Howell, (Dkt 16), is ADOPTED.

IT IS FURTHER ORDERED that Defendants3 Motion to Dismiss (Dkt. 10) is

GRANTED.

1

Case l:23-cv-QQ095-RP Document 19 Filed 10/20/23 Page 2 of 2

IT IS FINALLY ORDERED that Plaintiffs claims are DISMISSED WITH

PREJUDICE.

The Court will enter its final judgment in a separate order.

SIGNED on October 20,2023.

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

2

APPENDIX C

1 Stat 23 The Laws of the United States

Acts of the First Congress

J'SJSS

■

v

.........

V..

V

THE

LAWS OF THE UNITED STATES.

ACTS OE THE FIRST CONGRESS

OF THE

UNITED STATES,

Passed at the first session, which was begun and held at the City of New

York on Wednesday, March 4, 1789, and continued to September 29,

1789.

George Washington, President, John Adams, Vice President of the

United States, and President of the Senate, Frederick Augustus

Muhlenberg, Speaker of the House of Representatives.

STATUTE I.

Chapter I.—An Ad to regulate the 'rime and Manner of administering certain June 1, 1789.

Oaths.

Constitution

Sec. 1. Be it enacted by the Senate and [House of] Representatives of

the U. S. ar­

the United States of America in Congress assembled, That the oath or of

ticle 6, page 19.

affirmation required by the sixth article of the Constitution of the United

Form of the

States, shall be administered in the form following, to wit: “ I, A. B.

or afliramdo solemnly swear or affirm (as the case may be) that I will support the thTconstitution

Constitution of the United States.1* The said oath or affirmation shall of the United

be administered within three days after the passing of this act, by any one S*lles.' t0 be

member of the Senate, to the President of the Senate, and by him to the^members of

all the members and to the secretary; and by the Speaker of the House the Senate and

of Representatives, to all the members who have not taken a similar

the membera

oath, hy virtue of a particular resolution of the said House, and to the Represents-6 °

clerk : and in case of the absence of any member from the service of tivea.

either House, at the time prescribed for taking the said oath or affirma­

tion, the same shall be administered to such member, when he shall

appear to take his seat.

Sec. 2. And be it further enacted, That at the first session of Con- Manner of adgress after every general election of Representatives, the oath or affirmation aforesaid, shall be administered by any one member of the House Uon to speaker

of Representatives to the Speaker; and by him to all the members pre- of the House of

sent, and to the clerk, previous to entering on any other business; and ^®Pgreaenta‘

to the members who shall afterwards appear, previous to taking their W€S'

seats. The President of the Senate for the time being, shall also ad­ To each Senaminister the said oath or affirmation to each Senator who shall hereafter tor.

be elected, previous to his taking his seat: and in any future case of a

President of the Senate, who shall not have taken the said oath or affir­

mation, the same shall be administered to him by any one of the mem­

To the members of the Senate.

oF8QVG*

Sec. 3. And be it further enacted, That the members of the several ral State LegisState legislatures, at the next sessions of the said legislatures, respec- Intures.andtoaU

tively, and all executive and judicial officers of the several States, who If^ichdoffitfere

have been heretofore chosen or appointed, or who shall be chosen or of the States.

23

* :V

ViK

T"

24

FIRST CONGRESS.

Sess. I. Ch. 2.

1789.

By whom the appointed before the first day of August next, and who shall then be in

Sons8 'shaTi^be °®ce’ s^a^>' within one month thereafter, take the same oath or affirmaadmlniotered in tion> except where they shall have taken it before; which may be admin­

the several

istered by any person authorized by the law of the State, in which such

States.

office shall be holden, to administer oaths. And the members of the

several State legislatures, and all executive and judicial officers of the

several States, who shall be chosen or appointed after the said first day

of August, shall, before they proceed to execute the duties of their re­

spective offices, take the foregoing oath or affirmation, which shall be

administered by the person or persons, who by the law of the State shall

be authorized to administer the oath of office; and the person or persons

so administering the oath hereby required to be taken, shall cause a re­

cord or certificate thereof to be made, in the same manner, as, by the law

of the State, he or they shah be directed to record or certify the oath of

office.

To all officers

Sec. 4. And be it further enacted, That all officers appointed, or

of the

. U. States hereafter to be appointed under the authority of the United States, shall,

beP°lappointed° before they act in their respective offices, take the same oath or affirmabefore they act.* tion, which shall be administered by the person or persons who shall be

authorized by law to administer to such officers their respective oaths of

office; and such officers shall incur the same penalties in case of failure,

as shall be imposed by law in case of failure in taking their respective

oaths of office.

Oath of se­

Sec. 5. And be it further enacted, That the secretary of the Senate,

cretary of the

Senate and clerk anc*

c'er^

House of Representatives for the time being, shall,

of the House of at the time of taking the oath or affirmation aforesaid, each take an oath

Representa­

or affirmation in the words following, to wit : “ I, A. B. secretary of the

tives.

Senate, or clerk of the House of Representatives (as the case may be)

of the United States of America, do solemnly swear or affirm, that I

will truly and faithfully discharge the duties of my said office, to the best

of my knowledge and abilities.”

Approved, June 1, 1789.

Statute X.

July 4, 1789.

[Repealed,]

Chap. II.—An Jlct far laying a Duty on Goods, Wares, and Merchandises imported

into the United States, {a)

Sec. I. Whereas it is necessary for the support of government, for

the discharge of the debts o:’ the United'States* and the encouragement

and protection of manufactures, that duties be laid on goods, wares and

merchandises imported : (b)

Be it enacted by the Senate and House of Representatives of the

Act of August

10,1790, ch. 39, United States of America in Congress assembled, That from and after

sec. i and 2.

the first day of August next ensuing, the several duties hereinafter-men­

tioned shall be laid on the following goods, wares and merchandises im­

ported into the United States from any foreign port or place, that is to say:

(a) Duty Acts. Act of July 4, 1789, chap. 2 ; act of August 4, 1790, chap. 35 ; act of June 5, 1794,

chap. 51 ; act of January 29, 1795, chap. 17; act of March 3, 1797, chap. 10; act of May 13, 1800,

chap. 66; act of March 27, 1804, chap. 57; act of June 7, 1794, chap. 54; act of January 29, 1795,

chan. 17 ; act of March 27, 1804. chap. 46 ; act of July 8, 1797, chap. 15 ; act of May 7, 1800, chap. 43 ;

act of March 27, 1804, chap. 57 ; act of July 1, 1812, chap. 112 ; act of February 25, 1813, chap. 30;

act of August 2, 1813, chap. 38; act of April 27, 1816, chap. 107; act of January 14, 1817, chap. 3;

act of April 20, ISIS, chap. 107 ; act of April 20, 1818, chap. 98 ; act of May 21, 1824, chap. 136; act

ofMay 19, 1828, chap. 55 ; act ofMay 24, 1S2S, chap. 103; act of May 28, 1830, chap. 147; act of July

14, 1832, chap. 227; act of March 2, 1833, chap. 62; act of September 11, 1841, chap. 24; act of

August 30, 1842, chap. 270.

(5) The powers of Congress to levy and collect taxes, duties, exposts and excises, is Co-extensive with

the United Stains. Loughborough V. lilalce, 5 Wheat. 317; 4 Cond, Rep. 660,